Q&A: Candidates and Proxy Ballots

Q Can the person running for a board position make his own proxy ballot and cast votes for other people?

—Electorally Concerned

A “The simple answer to both of these questions is likely yes!” says attorney Marc H. Schneider of the Garden City, N.Y.-based law firm of Schneider & Mitola “However you must look to the specific governing documents (i.e., the bylaws and certificate of incorporation for co-ops and homeowners associations and the bylaws for a condominium) as well as the New York State laws governing the entity which constitutes the community association at issue.

“Under New York State Law, even if the bylaws of the particular community association do not specifically provide for voting by proxy, pursuant to New York State law, a person may vote by proxy.

“For co-ops, the New York State Business Corporation Law (BCL) gives a shareholder the unfettered right to designate a proxy. However, homeowners associations, which are governed by the Not-For-Profit Corporation Law can only do so unless this right is not prohibited by the HOA’s certificate of incorporation or bylaws.

“However, if the person at issue is a member of a condominium, the answer is different. Most condominium’s are unincorporated associations. They are governed by a set of laws typically referred to as the Condominium Act. The Condominium Act is silent on the issue of the right to utilize a proxy. As such, the present law provides that a proxy may only be used if the condominium’s governing documents provide for said right.

“Typically, the governing documents of most community associations expressly provide for and permit voting by proxy. Additionally, there are no laws which prevent a person who is running for a seat on the board from obtaining proxies which designate said person as the proxy holder (i.e., the person with the right to vote for the shareholder/homeowner).

“If a proxy is permitted, there is no law which mandates a particular form to use. There are, however, basic requirements for a proxy to be valid. First, it must be in writing and signed by the homeowner or shareholder. It does not, however, have to be notarized (unless it is required in the governing documents of the community association as issue). Second, they must be dated. This is important as a person may give one person a proxy and then later give a proxy to another person. The later dated proxy will govern.

“Finally, the issue of who the proxy holder may vote for depends on the instructions given by the person giving the proxy. Typically there are two (2) types of proxies. One is what is commonly referred to as a general proxy. This gives the proxy holder the right to vote as they please. The second type of proxy is a directed proxy. This is when the person who gives you a proxy places a restriction on the proxy or gives you a directive as to who to vote for. In that instance, you must then cast the votes in the manner so directed. In fact, many community associations utilize directed proxies (commonly called a proxy ballot). You should note, in the event a form proxy is distributed by your community association and despite the fact that I recommend you use said form if a proper form is distributed, you may still obtain a general proxy from a shareholder/homeowner unless the community association’s governing documents specifically prohibit same.”

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